Craddock v Anglo Coal

[1]

[1] The plaintiff Mr Anthony Frederick Craddock claims damages for personal injuries suffered on the 26th of August 2005 in the course of his employment with the defendant Anglo Coal (Moranbah North Management) Pty Ltd. Liability is admitted. I am required to assess damages.

[2]

[2] Mr Craddock was born on the 9th of May 1962 and so is presently aged 47 years. He was 43 years of age when injured.

[3]

[3] Mr Craddock injured his left ankle. The injury has been described by the orthopaedic surgeons as "osteochondral injuries" in three locations within the ankle. Dr South, who first treated Mr Craddock, thought that the overall impression was of "significant osteochondral damage". Those injuries have resulted in progressive arthritic change.

[4]

[4] Mr Craddock has undergone two surgical procedures.

[5]

[5] Arthroscopy was performed by Dr South on 10th July 2007 and that showed "a large anterior osteophyte which looked to be relatively new", as well as "delamination of the articular cartilage affecting the superomedial aspect of the talus, the anterior portion of the distal tibia and... the lateral aspect of the medial malleolus". Dr South removed the anterior osteophyte and debrided loose articular cartilage back to stable edges and performed a mild chrondoplasty.

[6]

[6] Mr Craddock was later referred to an orthopaedic surgeon specialising in surgery of the foot and ankle, Dr Foster. After reviewing all the available evidence Dr Foster concluded that Mr Craddock had suffered "a mark progression in his ankle arthritic change secondary to the osteochondral injuries sustained in... August 2005."

[7]

[7] Dr Foster performed a second arthroscopy on the 1st April 2008. At surgery he removed "persistent anterior osteophyte and also debrided an osteochondral defect over the medial condyle". As well a small loose body was removed from both anterior and posterior gutters and the syndesmosis was debrided.

[8]

[8] Dr Foster predicted that Mr Craddock would be able to return to his duties as a miner with no restriction save the qualification "as his pain allows".

[9]

[9] Despite the surgery Mr Craddock has continued to experience significant symptoms. He did return to his mining work. His pain continued. The pain experienced is commensurate with Mr Craddock's level of activity. The ankle occasionally locks and he finds is easily injured.

[10]

[10] Two orthopaedic surgeons gave evidence at the trial, Dr Mark Shaw and Dr Jeff Peereboom. They are agreed that Mr Craddock's problems are caused by the development of post traumatic osteoarthritis of the left ankle and that the condition will accelerate. They each consider that Mr Craddock will eventually require an arthrodesis of the ankle. The timing of that surgery is very much a subjective matter depending on the patient's reaction to the symptoms suffered.

[11]

[11] The present impairment based on the AMA guidelines was estimated by the specialists at between 3% and 5% whole person impairment. That will obviously increase with the acceleration of the osteoarthritis. Following an arthrodesis the AMA guide suggest that the level of impairment can vary anywhere between 17% and 52% of the lower limb, depending upon the outcome of the surgery.

[12]

[12] The only significant difference in opinion between the specialists was their views as to Mr Craddock's capacity to perform and maintain mining work. I will return to that issue later.

[13]

[13] The defendant submitted that $45,000 was an appropriate award under this head of loss and the plaintiff submitted that $70,000 was appropriate. Whilst the percentage impairments are small that is of little assistance in determining the award: see Driver v Stewart & Anor [2001] QCA 444 at [13] per RR Douglas J.

[14]

[14] Mr Craddock impressed me as a stoical individual who was determined to maintain his employment if possible. As a result he has returned to employment that was inappropriate for his condition giving the ongoing symptoms that he had in his ankle. He has had two unsuccessful surgical procedures. He faces a third. His impairment will increase with time.

[15]

[15] He has pain daily. In his statement he records he consumed about two packets of panadeine forte each month for a two year period between July 2007 and June 2009. On occasions he took other medication. In his evidence he said that he took less than he needed.[1] He suffers pain with simple daily tasks such as mowing the lawn or moving his wheelie bin. Carrying anything of significant weight is now a problem for him. He says that since June 2009 he has ceased taking panadeine forte but has taken panadeine at the rate of about a packet of 24 tablets a week. The painkiller taken can vary.

[16]

[16] Mr Craddock was a strongly built man who has maintained his fitness throughout his life. He obviously took great pride in his physical strength and fitness and working ability. In my view his capacity to carry out his mining work has been significantly impaired. It was obvious from the manner in which he gave his evidence that he feels deeply the impact of this injury.

[17]

[18] The claim made by the plaintiff relates to two separate periods. The first is for the period from 20 June 2007 to 20 June 2009. The second is for the period from 9 December 2009 to the present. The defendant contends that the award should be restricted to the period that Mr Craddock was in receipt of workers' compensation benefits from 20 June 2007 to 29 June 2008.

[18]

[19] The defendant's submission is that there should be no allowance for any lost income after Mr Craddock returned to work following his long period on workers' compensation. It was submitted that the relatively poor earnings - poor in comparison to Mr Craddock's previous earnings history - is explained by the inevitable gaps between contracts that can occur. It was said that there is no evidence that directly links the relatively poor earnings to any impairment due to the subject injury. To assess that argument it will be helpful to detail the post surgical work history more fully.

[19]

[20] Mr Craddock went onto workers' compensation benefits to enable him to have the surgery suggested by Dr South. He then remained on workers' compensation benefits until 29 June 2008. He said in his evidence that he was desperate to return to work because of the inadequacy of the workers' compensation benefits that he was receiving.

[20]

[21] After ceasing compensation Mr Craddock obtained a position at Norseman Gold Mine in Western Australia and worked there for about two weeks in late June, early July 2008. He says that he was asked to leave Norseman gold mine after a supervisor noticed that he was limping and they learnt of his injury. He then worked with RUC Mining Contractors Pty Ltd for about a week before the mine closed at the end of July 2008.

[21]

[22] On 16 September 2008 he obtained a position with Barminco Pty Ltd for about five weeks and again the position ended when the mine closed. Mr Craddock maintained that he had great difficulties in performing his duties at that mine. He then had an extended period of unemployment until obtaining the position with Redpath Australia Pty Ltd working on the Kestrel mine extension project. He continued in that position until 8th December 2009. He was asked to resign his position. There is no direct evidence that his resignation was sought because of anything connected with his injury but Mr Craddock reports that he had considerable difficulties carrying out his work and was eventually told that no position would be made available to him when his existing position of road header operator came to an end as he had limited capacity to fulfil other roles within the mine. Mr Craddock plainly had very significant skills and experience in the mining industry suggesting that the reason given to him was a convenient excuse.

[22]

[23] On 5th January 2010 Mr Craddock commenced with Central Queensland Road Profilers as a plant operator. His income from that occupation is much less than he was used to receiving in the mining industry.

[23]

[24] In summary, Mr Craddock did return to work and in much the same capacity as he had done prior to his surgery but he had increasing difficulties. He lied about his condition to secure employment. He thereafter had difficulty securing good long term employment until employed as a road header operator by Redpath Australia Pty Ltd on 20th June 2009. No claim is made for the period of his employment with Redpath Australia Pty Ltd but after that work ended he has been restricted to the relatively poorly paid work of a plant operator with Central Queensland Road Profilers. He claims for the difference between his actual income and the income that he would have earned employed in the mining industry in that latter period.

[24]

[25] The evidence establishes that Mr Craddock was a very experienced miner and held in high regard by colleagues who themselves have achieved positions of responsibility in the mining industry. He had devoted his life to his mining work and I have no doubt that but for the injury he would have endeavoured to maintain himself in full time employment. "Full time" in Mr Craddock's case meant that he went from contract to contract and inevitably experienced intervals of unemployment. However the impact of these intervals of unemployment is reflected in his average past earnings upon which any award must necessarily be based.

[25]

[26] The defendant's argument is not attractive. The evidence suggests that demand for experienced miners has rarely been higher. Yet Mr Craddock, an experienced miner, had difficulty obtaining and maintaining employment. Mr Craddock had a significant gap in his work history of a little over a year when on compensation. That could not but have had an adverse effect on his prospects of securing employment. Given the medical evidence it would be surprising if Mr Craddock was able to carry out his duties without significant and observable difficulty. The defendant's argument assumes that Mr Craddock's condition was unknown to any prospective employer, which in turn assumes that there is no checking at all done on prospective employees and no adverse comment or observation made of him. That strikes me as improbable.

[26]

[27] The plaintiff submitted that I should award $182,583.35 under this head of loss and the defendant $70,000. The plaintiff's submission is based on an assumption that he would have maintained employment, but for the injury, on a wage level equivalent to that which he was earning with a company Titan Mining Pty Ltd. I cannot understand why Titan Mining is chosen as the benchmark. The plaintiff worked for Titan Mining during the financial year ended 30 June 2006.[2] The period for which the loss is claimed commences on 20 June 2007, a year later.

[27]

[28] Mr Craddock earned an average of $1,461 net per week in the financial year immediately preceding his cessation of employment to undertake the surgery when he was employed substantially by TM Employment Pty Ltd.[3] That would seem to me to be the best guide as to his maintainable earnings albeit that he was struggling with his injured ankle through the whole of that preceding year.

[28]

[29] Whilst the earnings for the year ended 30 June 2007 are significantly higher than in the previous two years it is well known that the mining industry has enjoyed boom conditions over the last few years. In my view those earnings should be applied over the first period as submitted by the plaintiff with a deduction for monies earned.

[29]

[30] As to the second period for which a claim is made the plaintiff led evidence of much higher incomes now being paid to the witnesses that were called, each of whom had significant experience in the mining industry. These differing incomes reflected the different personal circumstances of the witnesses. Mr Crow for the plaintiff urged that I should simply adopt an average of the various incomes but in my view that does not reflect the probabilities.

[30]

[31] For example Mr Green's evidence suggests a net weekly income of nearly $2,800. Mr Green is working in hard rock mining. The plaintiff had changed from hard rock mining to coal mining in order to gain experience in the coal industry. His plan was initially to spend at least five years in the coal mining industry to gain experience. While I think that the plaintiff probably would have gone back to hard rock mining if he had remained uninjured given the excellent incomes being paid, it is not certain when that would have occurred.

[31]

[32] The evidence of Mr Gaynor was advanced as supporting an annual gross income of $140,000 per annum. In fact Mr Gaynor said that the wages paid to an employee would be in the order of $40 to $60 per hour and their earnings would depend on the roster but on an average they might work 45 hours per week.[4] The assumed income of $140,000 takes the $60 per hour figure, applies it to 45 hours per week and assumes employment for 52 weeks a year. That overstates the probabilities for the plaintiff. He was more likely to have some time off employment between contracts if he followed his usual course.

[32]

[33] The average advanced on the basis of Mr Franklin's evidence is $1,695.00 net per week but that assumes that the gross income is $125,000 per year for the mine worker. Again that assumes full time employment over 52 weeks of the year and ignores Mr Franklin's evidence was that the range of incomes was from $110,000 to $125,000.[5]

[33]

[34] Inclusion of the average incomes earned by hard rock miners increases the loss considerably. The defendant argues that the plaintiff had not earned anything like the incomes now being paid to the witnesses who were called. But that ignores the point. The evidence strongly supports the notion that the demand for qualified miners and their incomes has risen substantially in recent years. There is no evidence that the witnesses who were Mr Craddock's peers in hard rock mining earned significantly different and greater sums than he did when he was working in hard rock mining. There is no reason to assume that their wages are not applicable to Mr Craddock if it be assumed he would have returned to hard rock mining.

[34]

[35] It is necessary then to assess the prospects of Mr Craddock returning to hard rock mining. In assessing damages in respect of a past hypothetical event I am required to "make an estimate as to what are the chances that a particular thing ... would have happened and reflect those chances, whether they are more or less than even, in the amount which [I] award.": per Lord Diplock in Mallett v McMonagle[6] cited by Brennan CJ and Dawson J in Malec v JC Hutton Pty Ltd.[7]

[35]

[36] The competing considerations seem to be that Mr Craddock had a five year plan to gain experience in the coal mining industry, that had he not been injured then the five year period expired in early 2007, that incomes are significantly higher in hard rock mining than in coal mining, that Mr Craddock had contacts in the hard rock mining industry and long experience there, that the very high incomes were being paid in Western Australia, that the work is harder in hard rock mining and Mr Craddock getting to an age where this could become significant, that many people prefer to live on the eastern seaboard because of the greater proximity to large provincial towns and cities, and that Mr Craddock had no significant ties keeping him to the eastern seaboard.

[36]

[37] Mr Craddock has no reason not to pursue the highest paying work that was available to him. It is apparent from Mr Green's evidence that the highest paying work would seem to be available in the hard rock mining in Western Australia. Mr Craddock could have earned nearly $1,000.00 net per week more there than in coal mining work on the eastern coast. While strong and fit enough to do so I think he would have pursued that work. I cannot see that he had any personal ties to prevent him from doing so.

[37]

[38] The only limiting factor on that was his fitness. It seemed that the coal mining work was considerably easier than the hard rock mining and it is probable that as he aged he would have sought that easier work. I think that the prospects of Mr Craddock returning to hard rock mining were considerably better than even, and close to certain. I note that he appeared to be very fit and, as I have said, appeared that he prided himself on his fitness.

[38]

[39] Obviously it is speculative as to when Mr Craddock might have acted to return to hard rock mining or to Western Australia. While it was a reasonable chance he would have been earning such incomes by now it is only a chance. I think that chance is best reflected by adjusting the future component of the award, as I set out below, rather than the past.

[39]

[40] Obviously there are many imponderables. Doing the best I can I will adopt the plaintiff's income in the year ended 30 June 2007 as reflecting a sustainable long term average. The calculations in exhibit 10 best reflect that average at $1,461.00 net per week. I will apply that over the periods of loss claimed and deduct the actual earnings of $25,551.55. That approach provides considerable discounts in the defendant's favour adopting as it does a wage rate that is now quite dated and ignores the prospect of him earning the high wages available in hard rock mining.

[40]

[42] The plaintiff submits that the appropriate allowance is $727,825 and the defendant $150,000. The plaintiff assumes that his long term sustainable earning capacity through to age 65 years is $1,977.00 net per week and that he has a residual capacity to earn $683.00 net per week - his present wage with Central Queensland Road Profilers. He contends for a discount of 10% for contingencies. The defendant submits that a loss of $400 net per week best reflects his loss.

[41]

[43] The defendant's assumptions are that the plaintiff remains capable of driving plant and machinery on a mine site and can essentially maintain his earning capacity in the high paying mine work but that he will have some restrictions as he can no longer carry out the full range of duties expected of a miner but will be restricted to driving plant and machinery.

[42]

[44] The premise on which the assessment should be carried out is that the plaintiff will be honest in his dealings with his prospective employers in the future. That will require that he reveal that he has had a significant period of time on workers' compensation, that he has undergone two unsuccessful surgical procedures and has been advised he will need to have a third procedure, that he has daily pain and takes painkillers and that he is unfit for any work which requires him to work on uneven ground, work in slippery or wet conditions or indeed work on machinery where he would be required to get up and down ladders constantly through the day.[8] It is true that he can sit in a truck and operate it and indeed probably sit on a range of machinery and operate that machinery. That effectively is what he is doing and what he intends to continue to do. However, given the arduous conditions that exist on a typical mine site, and the potential hazards that can arise on any mine site, whether underground or open cut, I think it obvious that Mr Craddock would be an unattractive employee to any sensible employer. That being established an evidential onus comes on to the defendant to demonstrate the residual earning capacity: Thomas v. O'Shea (1989) ATR 80-251 at page 68,701 but subject to the comments of Chesterman J in Bugge v. REB Engineering Pty Ltd [1999] 2 Qd R 227; (1998) QSC 185; and see Anodising and Aluminium Finishers of Queensland Pty Ltd v. Coleman [2002] 1 Qd R 141; (1999) QCA 467 at [16] per RR Douglas J. In my view that onus was not discharged - no evidence was called from any employer in the mining industry that Mr Craddock had any reasonable prospect of employment given his existing disabilities and advice.

[43]

[45] A further assumption underlying the defendant's approach is that Mr Craddock will undergo the fusion operation in the relatively near future and so have a pain free ankle albeit with some restrictions.

[44]

[46] Mr Craddock is opposed to having the arthrodesis performed. Effectively his view is that twice before he has been told that he should undergo procedures, twice before he has been told that he could expect significant improvement, and twice before the procedures have failed. He said that if he could be persuaded that the procedure would be successful and would get him back to his full functioning to enable him to work as a miner then he would undertake the procedure.

[45]

[47] It is evident that that is not the advice that he will receive. The AMA guide itself indicates the problem - the level of impairment following on a fusion operation can vary between 17% and 52% of the lower limb. Thus whilst the specialists no doubt have great expertise and are successful in a high percentage of the procedures undertaken, they are duty bound to advise Mr Craddock that success is not guaranteed and that his ankle could be worse following the procedure if the procedure does not have a successful outcome. I note that his present level of impairment is, at the most, in the order of 5% of the whole person.

[46]

[48] Mr Craddock's approach to further surgery is far from idiosyncratic. Dr Shaw provided his view that "it is often more difficult to encourage a patient, who requires surgery, to enter upon surgery, where they had previously undertaken surgery which... failed to produce any benefit".[9] Even if Mr Craddock undertook the surgery, that is not the end of his problems. Dr Shaw pointed out that when the ankle is fused extra stresses are placed upon other joints in the foot, particularly in the mid foot area. That then increases the risk of arthritis over the longer term. This can lead to widespread and increasing pain in the sub-talar and mid foot areas.

[47]

[49] Dr Peereboom held the view that the arthrodesis would provide Mr Craddock with a "strong reliable joint" and would enable him to do heavy labour. He conceded that uneven ground would cause a problem, but if the terrain was relatively stable and flat then Mr Craddock should have no trouble in carrying out heavy employment following an arthrodesis.

[48]

[50] Dr Shaw on the other hand strongly advised Mr Craddock against returning to any form of mining work after an ankle fusion or indeed any form of manual work that needed to be carried out on any uneven surface. Dr Shaw practiced for some 14 years in the Mackay area where a large proportion of his patients were miners. He is very familiar with the mining industry and with the hazards that it presents. He thought it was most inadvisable for Mr Craddock to return to mining work. He thought it inevitable that if he tried to do so the nature of the work would place considerable stresses upon the mid-foot and sub-talar areas with resultant early and painful arthritis in those areas. Further he thought that Mr Craddock would be at a significant risk of further injury if he endeavoured to work in uneven or unstable mining conditions or on heavy mining plant and equipment. In his view Mr Craddock ought to restrict his employment to sedentary or supervisory duties in a workplace with relatively even work surfaces.

[49]

[51] In my opinion Dr Shaw's views better reflect the reality of Mr Craddock's future. It is certainly not an unreasonable approach for Mr Craddock to limit his risk of developing problems over time. As it is, the occupation that he has chosen of plant operator will require him to subject his foot to a reasonable degree of activity which he presently finds quite painful and which pain will no doubt increase with time as his osteoarthritis develops. If that pain develops to a sufficient degree then he will undergo the arthrodesis that is proposed. I think it is probable that he will come to that sooner or later. However that will not make a significant change to his earning capacity. It will simply enable him to do his present job in a relative degree of comfort.

[50]

[52] A significant discounting factor to bear in mind is that the mining work is arduous and with increasing age it becomes more and more difficult to maintain employment, even when uninjured. It was an agreed fact between the parties that at the Moranbah North coal mine only 15% of the work force was over the age of 50 years. The work force consisted of 400 employees. That of course is only one mine and the defendant did not attempt to lead evidence from a range of mines to prove that Moranbah North's experience reflected an industry wide phenomenon. However, it would be surprising if it did not. Typically, mines are in more remote locations and the living conditions are not ideal. The excellent wages that are available for unskilled men (unskilled in the sense of lacking a trade) generally mean that people can retire from the industry at an early time having achieved some measure of financial security. The question then is whether Mr Craddock was likely to be one of the 15% that would persist past age 50.

[51]

[53] In my view there is little doubt that he would be in that category. He has known no other life since about age 20. He clearly was passionate about his mining work. Four witnesses were called who knew him and who spoke very highly of him. He had endeavoured to continually improve his mining skills and qualifications as exhibited by the documents in exhibit 11. He had achieved supervisory roles albeit of the hands on type. In the year of his injury he was studying to get his deputy certificate.

[52]

[54] I have no doubt that he would have wished to persist with his mining work as long as he physically was able.

[53]

[55] The only significant point that the defendant made against Mr Craddock maintaining good employment was that his personality type was such that employers might not want to have him. Mr Morton for the defendant cross examined Mr Craddock extensively about disputes that he had had at the workplace and his criminal history.

[54]

[56] These criticisms need to be put into context. Mr Craddock has had a very difficult personal life. His mother was aged only 16 years when he was born, she separated from his father when he was very young and he was effectively raised by his grandparents. He ended up in foster care and suffered abuse whilst living in children's homes. By the time he obtained full time work as an air leg miner at the age of 20 years he already had considerable experience behind him in working in and around mines in Western Australia. For the next fifteen years he maintained full time employment in the mining industry. However in 1997 he and his wife discovered that she had cancer and he ceased working to care for her. His wife died in March of 1998. He suffered from depression following his wife's death and took on the full time responsibility for his daughter aged 11 and his son aged 5. He eventually returned to full time employment two years later. In January 2002 he commenced working in the coal mining industry in the Bowen Basin based out of Mackay. He was determined to broaden his experience in the mining industry so as to guarantee himself future employment. In August of 2005 he suffered the subject injury to his ankle which thereafter was a steadily worsening problem for him. I mention this history as there is no suggestion that these many adverse personal circumstances, prior to the injury, impacted at all on Mr Craddock's ability to gain or maintain employment or advancement in the mining industry.

[55]

[57] More significantly, in July 2006 his son Joshua became ill and then died from a form of meningococcal disease. He became distressed following his son's death and sought treatment for depression.

[56]

[58] Ten days after his son's death he was involved in the dispute at the workplace for which he was criticised. He maintains that he made certain remarks to another employee. He subsequently wrote a letter of apology[10]. He was convicted of an assault at about this time as well.

[57]

[59] Whilst the impression I had of Mr Craddock was that he was likely to be fairly blunt in his manner and forthright in his views I do not see this dispute at the workplace in July of 2006, given the stresses that he was then under, to be of any great consequence to his long term employment prospects.

[58]

[60] In relation to Mr Craddock's character I note the acceptance by Mr Franklin, who knew Mr Craddock well, that Mr Craddock had got into scrapes from time to time and that he was capable of being blunt and curt - characteristics that could put him offside with other workers and cause friction. However the simple fact is that despite those personality characteristics Mr Craddock maintained himself in well remunerated employment throughout his life and it would seem that those characteristics did not stand in the way of him becoming a leader of the teams with whom he worked on many occasions. Indeed those same characteristics probably stood him in good stead in an industry which no doubt attracts its share of tough-minded employees.

[59]

[61] This impression that I had is borne out by Mr Franklin's evidence as to Mr Craddock's employability. Mr Franklin had been involved in the mining industry for 33 years and by the time of trial was the general manager of Alterrain, a mining contracting company. He said:

[60]

"Tony's very, very passionate about his - Tony's a very passionate miner. He's a very, very good miner. He lives and breathes mining. I think Tony's a very good employee. I think he's a very, very good miner."[11]

[61]

"If he were medically fit would you like to be able to offer him work? --. Absolutely."[12]

[62]

[62] He was cross examined too about certain criminal convictions. On the 4th of September 2008 Deardon DCJ sentenced Mr Craddock in respect of five counts of unlawfully stalking his former fiancée. Mr Craddock pleaded guilty on the morning of the hearing. The charges related to Mr Craddock's conduct between the 12th day of June 2006 and the 5th day of November 2006. The conduct complained of consisted of threatening and abusive telephone calls, the sending of some 35 text messages that were also threatening and abusive, and, on one occasion, driving past the complainant's home and sounding the horn of the vehicle.

[63]

[63] In the course of the sentencing of Mr Craddock a letter was tendered from Queensland Health indicating that he had been under psychiatric care from September of 2006 until July of 2007 and was still taking anti depressant medication in September of 2008.

[64]

[64] Whilst Mr Craddock's conduct toward his ex fiancée was inexcusable it is difficult to accept that any strong inference should be drawn that it was likely to impact upon his long term earning capacity. It is true that his conduct has an aggravated feature in that he violated the order of a magistrate imposed on 29 September 2006 to avoid all further contact with his ex fiancée but it is plain that Mr Craddock was far from in his normal frame of mind through this period in his life.

[65]

[65] A further submission was made that Mr Craddock was unreliable in his testimony on the basis that he attempted to mislead his Honour Judge Deardon as to his employment prospects particularly in Irian Jaya. In my view that allegation is not made out. At the hearing of the sentence the counsel who appeared on Mr Craddock's behalf made plain to Judge Deardon that he had spoken only briefly with Mr Craddock earlier that day.[13] The contested information concerned Mr Craddock's present employment and whether Mr Craddock had obtained employment in Indo China or whether he had only an expectation that he might obtain such employment. It is far from clear that the precise detail would have made any difference to the sentencing options but the simple fact is that mistakes can occur when instructions are taken and they are not always mistakes made by the client.

[66]

[66] A further matter to bring into account in considering the damages appropriate for the likely impact on Mr Craddock's earning capacity in the future is the sustainability of the very good wages that are presently available in the mining industry. Those wages have increased dramatically in the last two or three years. In the financial years ended 30 June 2005 and 2006 Mr Craddock was averaging about $1,000 net per week. In 2007 that increased significantly to about $1,400 net per week and the evidence led in the course of the trial indicated that incomes as high as $2,200 and $2,780 net per week were in fact being achieved. It is impossible for anyone to know whether these excellent incomes will continue but there is no certainty that they will. Mr Craddock's own past history supports a need for that caution. He relates in his statement that in September 2001, following the terrorist attacks in New York, commodity prices dropped leading to all contracting positions at the mine at which he worked being made redundant. He was then out of work for some 3 months. I think it is sufficiently notorious in the community for me to acknowledge that the present mining boom is due to the very significant demand emanating from China and India for commodities. As well the price of gold has increased significantly in recent years such that it is now daily reported as being in excess of $US1,000 per ounce. Whether these benign conditions for the mining industry will continue is a matter of speculation, but it seems to me that it would be inappropriate to assume that they necessarily reflect the conditions that will apply over the next 18 years.

[67]

[67] A third discounting factor that is relevant is that Mr Craddock has some degenerative changes evident on cervical spine x-rays. There is a minimal history of symptoms.[14] There is no necessary conclusion that those changes would become symptomatic but the probabilities of course increase the more arduous the work undertaken and so hence this is a potentially limiting factor.

[68]

[68] I assess Mr Craddock's loss on the basis that but for his injury he would have in all probability pursued hard rock mining and achieved the sort of income that his good friend Mr Green has achieved over the next 2 years to age 50. Thereafter I assume that he would have sought easier work but still in the mining industry. For the first period his loss is reflected by an amount of about $2,000.00 net per week (roughly based on Mr Green's wage of $2,778 net less his present wage of $638 net). Applied over 2 years and the 5% discount tables the loss is about $200,000.

[69]

[69] I assume that but for the subject injury Mr Craddock would have maintained employment in the mining industry until aged about 60 years. His loss in that period is reflected by the difference between the average of the earnings that were proposed in the coal mining industry, taken as about $1,670.00 net per week, and his present wage. That should be applied over the ten year period delayed two years.[15]

[70]

[70] There needs to be some discounting of that loss. I observe that there are three significant inbuilt discounts already in that I am limiting Mr Craddock to coal mining and excluding hard rock mining, further limiting him to a working life ceasing in the mining industry at age 60, and assuming thereafter that he would be no worse off than he is presently. He does have the potential that his ankle would worsen even after an arthrodesis. Thus his capacities might well be worse than they might otherwise have been over the period of time in question. There is increasing emphasis in society for people to extend their working lives. Thus it is arguably wrong to make no allowance for the potential loss after age 60.

[71]

[71] Nonetheless in my view there needs to be a further discount for the contingencies of life that might impact on Mr Craddock earning the excellent mining income.

[72]

[72] The conventional percentage discount for the adverse vicissitudes of life is 15%. Mr Crow submits that there is no justification for the adoption of that traditional discount. There are many statements of high authority that resort to such rules of thumb is inappropriate: see for example Wynn v NSW Insurance Ministerial Corporation [1995] HCA 53; (1995) 184 CLR 485 at 498. Martin J has recently considered the issue and adopted a discount rate of 12%: Waller v McGrath & Anor [2009] QSC 158 at [50]- [53]. His approach was not discussed on appeal: Waller v Suncorp Metway Insurance Limited [2010] QCA 17.

[73]

[73] What are the vicissitudes in question? In Arthur Robinson (Grafton) Ltd v Carter [1968] HCA 9; (1967) 122 CLR 649 at 659 Barwick CJ listed the following contingencies as affecting the assessment of loss of earning capacity: "ill health, unemployment, road or rail accidents, wars, changes in industrial emphasis, so that industries move their location or are superseded by new and different techniques, the onset and affect of automation and the mere daily vicissitudes of life".

[74]

[74] Professor Luntz in his comprehensive text Assessment of Damages for Personal Injury and Death (4th edition) argued that statistically contingencies should be assessed at under 10% in the average case.[16] The most significant risk that Professor Luntz identified was the risk of unemployment. The evidence presently available concerning the mining industry suggests that widespread unemployment is unlikely to occur in the foreseeable future and I think that in Mr Craddock's case he would have had more prospects of maintaining employment than most, if uninjured.

[75]

[75] The realistic adverse contingencies here include the prospect that Mr Craddock may suffer some other injury from his mining work that could go uncompensated, he may suffer from some incapacitating illness or death, or the mining industry may experience such a significant downturn that even highly experienced and qualified miners as Mr Craddock could find themselves out of employment, or the high wages presently available fall. On the other hand not all contingencies are adverse: Bresatz v Przibilla [1962] HCA 54; (1962) 108 CLR 541 at 543-4 per Windeyer J. Mr Craddock had consistently achieved positions of responsibility and so arguably had better prospects of higher paying work than the average.

[76]

[76] Whilst I accept the force of the criticism made by Mr Crow of the conventional approach it seems to me that absent some particular fact or circumstance that takes the case out of the ordinary it is more appropriate that the conventional discount be applied. It is essentially an assessment of imponderables that apply generally. If there is to be a change in practice in Queensland then that should be as a result of a decision of the Court of Appeal.

[77]

[77] In this case the mining industry has more than its share of risks and whilst I am conscious of the inbuilt discounts that I have mentioned, and that it is only uncompensated risks leading to loss of income that are relevant here, I see no strong reason to depart from the conventional approach. The specific factors relevant to this case that I have identified above do not suggest to my mind that a lesser discount is appropriate. I propose to allow $300,000 for the loss of earning capacity in the period between age 50 and age 60 applying a 15% discount to the loss that would otherwise have applied.

[78]

[78] I do not apply a discount to the first two years of the calculation, the contingencies being greatly reduced for so short a period and for so near a time in the future. As well, considering the compensation overall, I am conscious of the inbuilt discounts that I have mentioned.

[79]

[80] The plaintiff makes a claim for the loss of benefits that he would have received had he maintained employment in the mining industry in the form of the provision of meals, accommodation and travel to and from work. The loss is assessed at $300.00 per week.

[80]

[81] I do not think it can be sensibly argued that an employer's payment of the cost of getting to and from work is an added benefit. Rather it is a saved expense and justifies not discounting any claimed loss of earnings.

[81]

[82] The provision of accommodation only has benefit if it saves the worker maintaining accommodation elsewhere. If in fact the worker is maintaining accommodation in any case, say to house a family or to have accommodation available during periods of time off or leave, then there may be little or no benefit. There may be a saving of water and electricity costs.

[82]

[83] The provision of meals is clearly a benefit that could be of some advantage to the worker.

[83]

[84] The matter is complicated because not all employers offer benefits and when benefits are offered they are not always the same. Mr Gaynor supported the plaintiff's claim that accommodation and meals were provided in addition to salary. Mr Gaynor was a mining engineer based out at Mackay and had extensive experience extending back over nearly 30 years.

[84]

[85] I accept that if meals and accommodation were provided, and if Mr Craddock was not maintaining an independent home, the assessment of the benefits could well be in excess of $300 per week. I am conscious that Mr Craddock maintained that his expenditure on food alone was in the order of $300 per week. However there is a degree of speculation in the claim. Mr Craddock in fact does maintain a home at Brecknell Street, Rockhampton but was able to rent that out to friends when he did not require it. That was for only a limited period.

[85]

[86] Given the various contingencies that affect this aspect of the claim I propose discounting the claim heavily. I allow $100 per week for both past and future components.

[86]

[87] I allow $12,000 for the past claim and $40,000[17] for the future claim.

[87]

[88] Mr Craddock takes painkillers and the cost is assessed at $5.00 per week on average. He has the prospect of surgery at some time although I expect that will be delayed for a reasonable period as he will take some convincing before he undertakes that surgery. The surgery should relieve the need to take medication at least for many years. I need to bring into account the prospect of the surgery failing. The defendant conceded $15,000 was appropriate and I agree.

[88]

[89] The remaining heads of loss are uncontroversial. In summary the assessment is as follows:

[89]

Past loss of Superannuation Benefits[20]

[90]

[90] There will be judgment for the plaintiff in the sum of $785,270.80.

[91]

[2] According to p 69 of the Quantum statement Ex 2.

[92]

[6] [1970] AC 166 at 176.

[93]

[7] [1990] HCA 20; (1990) 169 CLR 638 at 640.

[94]

[8] T2-44/18; 2-45/10-20 and see T1-39/30-40

[95]

[15] The multiplier for which is 375 on the 5% discount tables

[96]

[16] See pp386-387. The courts in Western Australia apparently are alone in adopting this approach - see the cases footnoted by Prof Luntz at fn 143 at p 381.

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (96 paragraphs)

Parties

Cases Cited (6)